1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TONY LOMELI, Case No.: 3:23-cv-00448-JAH-AHG

11 Petitioner, ORDER DENYING PETITION FOR 12 v. WRIT OF HABEAS CORPUS PURSUANT TO

13 BRYAN BIRKHOLZ, Warden,

14 Respondent. (ECF No. 1). 15 16 On September 23, 2022, Petitioner Tony Lomeli (“Petitioner”), an inmate housed at 17 FCI Lompoc, filed an “Emergency Motion Seeking Immediate Release from the Bureau of 18 Prisons (“BOP”) and Termination of Sentence Under

.” (Pet., ECF No. 19 1). After a careful review of the Petition and responses submitted, and for the reasons set 20 forth below, IT IS HEREBY ORDERED the Petition is DENIED. 21 On September 28, 2012, a grand jury returned a five-count Superseding Indictment 22 charging Petitioner with Felon in Possession of a Firearm, in violation of

922(g)(1) and 924(a)(2); and Conspiracy to Distribute Methamphetamine, in violation of 24

(a)(1) and 846. United States v. Lomeli, No. 3:12-cr-02791-JAH, ECF 25 No. 588 (S.D. Cal. September 28, 2012). On May 30, 2014, a jury found Petitioner guilty 26 of Unlawful Possession of a Firearm and guilty of Conspiracy to Distribute 27 Methamphetamine.

at ECF No. 588 The Court imposed a sentence of 312-months, 28 1 and 120-months in custody, respectively, with the sentences to run concurrently.

at 2 ECF No. 779.1 3 Petitioner appealed his sentence on December 2, 2014,

at ECF No. 777, and the 4 Ninth Circuit Court of Appeals affirmed the sentence and conviction,

at ECF No. 830. 5 On June 27, 2016, Petitioner filed a motion to vacate, set aside, or correct his sentence 6 pursuant to

on the following bases: the Supreme Court’s ruling in 7 Johnson v. United States,

(2015); ineffective assistance of counsel; and denial 8 of his Fourteenth Amendment right to equal protection of the law. Lomeli, No. 3:12-cr- 9 02791-JAH, ECF Nos. 832, 884. The Court denied Petitioner’s motion to vacate his 10 sentence, finding Petitioner was not sentenced under the residual clause pursuant to 11 Johnson, and the claims for ineffective assistance of counsel and Equal Protection under 12 the 14th Amendment were unsupported by the law and the record in the case.

at ECF 13 No. 893. 14 On July 2, 2020, Petitioner filed a Motion for Compassionate Release based on his 15 potential exposure to COVID-19.

at ECF No. 909. The Court denied the motion, based 16 upon Petitioner’s failure to show extraordinary and compelling reasons to warrant a 17 reduction in his sentence.

at ECF No. 920. Petitioner thereafter filed a renewed 18 Compassionate Release Motion pursuant to

(c)(l), requesting 19 compassionate release alleging the BOP has violated his constitutional rights and FCC 20 Lompoc has provided inadequate medical care in light of the COVID-19 pandemic.

at 21 ECF No. 933. This Court denied Petitioner’s motion, finding Petitioner’s medical 22 conditions and general concerns regarding COVID-19 exposure at FCI Lompoc are not 23 “extraordinary and compelling” reasons warranting relief.

at ECF No. 948. 24 25 26 1 According to public records, Petitioner’s projected release date is September 10, 27 2033. See Fed. R. Evid. 201; Fed. Bureau of Prisons Inmate Locater, https://www.bop.gov/inmateloc (last visited June 30, 2023). 28 1 On September 23, 2022, the instant Petition was filed in the United States District 2 Court for the Central District of California captioned as an “emergency motion seeking 3 immediate release from the BOP and termination of sentence under

and 4 relief from being held in custody in violation of the Eighth Amendment to the United States 5 Constitution, and relief from conditions of confinement in violation of the Eighth 6 Amendment, and relief from the BOP due to their inability to provide adequate medical 7 care, and relief from the BOP repeated failure [sic] to execute and comply with the Federal 8 Court’s preliminary injunction order and relief from further psychological distress.” (Pet. 9 at 1 (capitalization adjusted)). Petitioner requests that the Court grant him immediate 10 release from the custody of the BOP based on the allegedly substandard medical care and 11 inadequate treatment at FCI-Lompoc; poorly trained medical providers; conditions of 12 confinement that violate the Fifth and Eighth Amendments and the prohibition against 13 cruel and unusual punishment that violate the Due Process Clause and international law. 14 Petitioner further argues that the class-action lawsuit in Torres, et al. v. Milusnic, et al., 15 (later renamed Garries, et al. v. Milusnic, et al.) 2 has not provided Petitioner with any 16 relief from the unconstitutional conditions of confinement. (Id.) Petitioner requests release 17 to home confinement. (Id.) 18 19

20 21 2 Plaintiffs in Torres/Garries asserted two causes of action: (1) Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution 22 pursuant to

, 2243; (2) and Unconstitutional Conditions of Confinement 23 in Violation of the Eighth Amendment to the U.S. Constitution pursuant to U.S. Const., Amend. VIII;

;

.

, 718 (C.D. Cal. Jul. 24 14 2020). Petitioners sought injunctive relief in the form of: (1) expedited review and 25 determination of eligibility of Lompoc inmates for home confinement and compassionate release; (2) and improved conditions for inmates remaining at Lompoc in light of COVID- 26 19. As relevant here, the court determined that “[b]ecause Petitioners contend there are no 27 set of conditions of confinement that could be constitutional, the [c]ourt finds [p]etitioners challenge the conditions of their confinement . . . Accordingly, the [c]ourt concludes 28 1 The Government filed a motion to dismiss the Petition stating the Petition “is 2 defective and must be dismissed for multiple independent reasons.” (MTD, ECF No. 12 3 at 1). First, as to Petitioner’s allegation regarding the excessive COVID-19 risk at FCC 4 Lompoc the Government argued this claim must be dismissed as it is not a valid basis for 5 § 2241 habeas jurisdiction. (Id. at 9-10). Second, as to Petitioner’s claim that the BOP at 6 FCC Lompoc engaged in systematic indifference to COVID-19 risk that required release 7 of inmates, the Government claimed that the class-wide settlement agreement in Garries, 8 et al. v. Milusnic, et al., No. 2:20-cv-04450-CBM-PVC, resolved this issue and that 9 Petitioner does not identify any inmate-specific claims outside of the class to warrant 10 release. (Id. at 10). Third, the Government alleged that because the Central District of 11 California is not the sentencing court it lacks the authority to hear Petitioner’s request for 12 compassionate release under the First Step Act, and requests the case be transferred. (Id. 13 at 10). Lastly, the Government contends that the instant Petition fails because Petitioner 14 had not exhausted his administrative remedies before bringing suit. (Id. at 10). 15 On March 9, 2023, the Hon. John W. Holcomb in the District Court for the Central 16 District of California granted the motion to dismiss on the basis of improper venue and 17 transferred the matter to this Court. (Order on MTD, ECF No. 13). 18 The Ninth Circuit in Pinson v. Carvajal,

(9th Cir. 2023), resolved the 19 question of whether prisoners can use habeas to obtain review of their conditions of 20 confinement, when the only remedy requested is release to home confinement. The Court 21 stated that “[t]he question of whether a claim goes to the core of habeas does not turn ... 22 solely on whether the prisoner requested release as opposed to some other form of relief.” 23

. The Ninth Circuit further stated that “[r]elease is the only available 24 remedy—and thus a claim is at the core of habeas—if a successful petition demonstrates 25 that the detention itself is without legal authority.”

(emphasis in original). “By 26 contrast, claims that if successful would not necessarily lead to the invalidity of the custody 27 are not at the core of habeas corpus.”

. Like the petition in Pinson, the habeas 28 request here does not allege that the detention itself is without legal authority. Accordingly, | || Petitioner’s request is DENIED, as the Court lacks jurisdiction to provide Petitioner with 2 || the relief requested. The dismissal is without prejudice to Petitioner’s right to file a claim 3 || challenging his conditions of confinement. Jd. at 1076 (“We therefore conclude the district 4 ||court was not required to convert [the petitioner’s] habeas petitions into civil rights 5 || actions[.]’).? 6 IT IS SO ORDERED. 7 ||DATED: July 26, 2023

9 10 JOHN A. HOUSTON UMTED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2oi}o020tti<“i‘< OO! 27 To the extent that Petitioner presents a valid § 3582 motion, he does not present any 28 new extraordinary and compelling circumstances that have not already been considered by this Court. See Lomeli, No. 3:12-cr-02791-JAH, ECF Nos. 920, 948.